New York Incineration May Have Caused PFAS Contamination In Bennington

Professors at Bennington College claim that the incineration of toxic firefighting foam near Albany, NY seems to have contaminated nearby communities with PFAS. Attorney Paul Harding of Martin, Harding & Mazzotti, LLP is on the radio with WVMT discussing the issue. Please give it a listen or read the transcript below.

Interviewer: We’re talking with Paul Harding, a partner at Martin, Harding & Mazzotti. And we’re glad to be talking with him today because, Paul, I’ve got a question for you. There…a question around PFAS. We’ve heard about PFAS. They are everywhere. But recently there was a story down in Bennington, where they were doing some burning and adding more PFAS into the general environment. I could see that as a potential problem. But PFAS have been so pervasive. I’m not sure if there’s a…where the line is drawn here.

Paul: Yeah, I mean, they’d like to have none, you know, and they’re pointing towards Albany and saying, “Hey, you guys are burning this foam. And if you’re incinerating it, but coming through your smokestacks, the wind kind of blows that way, our way and it’s dropping these PFAS on our land and in our drinking water. So, big news. I mean, we’ve seen it before. The DEC for New York came back and said, “Well, listen. Yeah, we saw the levels that you’re saying. But those are the levels we find in every urban area.” Well, Bennington is saying, “We’re not an urban area. We’re Bennington and need your…find another way to do it. You know, find…get the wind to blow another way. You know, keep it in New York. We don’t need your…” So, it’s an ongoing concern. To your point earlier, if you look hard enough, you can find this stuff virtually everywhere. The question is, what are the acceptable levels?

Interviewer: So Paul, how do we sort through what Bennington is saying, the college professors there that of identified the levels as too high, with the New York and Vermont environmental people saying that they don’t think they are too high?

Paul: I think the Bennington people are probably…they’re feeling justified and saying, “We don’t want anything. We don’t burn this stuff. You know, you do it there and you’re landing and no one knows. Some say acceptable levels. We say zero is an acceptable level. Right. So, we’re not gonna play your game and say, “Well, it would take years and years and years of this before there’s any issue, you know, until the rules change.” Then they find out, “Oh, geez, turns out just a smaller amount of this can affect this in somebody, a thyroid or cancer, or the babies that can be born underweight.” You know, it’s an age-old argument, you know, especially when you’re lifting stuff in the air from one state and dropping it in another. Certainly see the reason for the angst. But probably, they have nowhere to go, other than to continue to do what they’re doing. And I like that they’re doing it [inaudible 00:02:39] the right alert and, you know, cause some people to think about this even though legally they’ll probably get shut down.

Interviewer: But, Paul, we had a similar story. I remember, it’s been a couple of years ago at least, with the International Paper Company and them doing some burning, those fumes coming over into Vermont. But I’m just thinking about, what happens if I…my neighbor, I live in a rural area, if my neighbor decides to burn their trash and the smoke starts coming over into my yard? Where do I draw the line between when do I go over and say, “Hey, you know, you’re causing me some health problems?”

Paul: You know, the first thing I learned in law school was a thing called the riparian rights. And it’s a word that just never hoping I’d use 10 times since. But if you’re further up the river, and you put stuff in the river, you’re affecting other people’s drinking water. Right. And that’s been age-old. You know, this is stuff in the, you know, the 1300s and common law. I mean, everyone got the fact that somebody who gets to your…the stuff you’re gonna be using first has a potential to violate it in some regard. So, yeah, you know, burning and burning chemicals, and I don’t think that we have all the answers to it. I think there’s a deemed, and like I said acceptable level. But, yeah, it provides a lot of tension, especially when you have neighbors doing it. You know, you got the Hatfields and McCoys, you know, kind of generationally saying, “You did this to us. And you did…and this is gonna continue on.” But again, it comes down to picking…you know, we live in a world where we’ve got to get rid of this foam.

Interviewer: I wonder if there’s a suggestion by the Bennington…the people in Bennington, that there’s a better way to dispose of this stuff. I know, they’re saying that…they’re suggesting there should have been a test conducted, a test burn conducted, before allowing the facility to incinerate it.

Paul: There always is a way to clean it up a little bit more, right? So, you could…I’m sure there are ways that they can take the stuff they’re releasing, which the DECs are saying is fine, and refine it more, refine it more, break it down more, right? So, the answer is, yes. But then the flip side is, what does it cost? You know, and especially right now trying to ask the government or any municipality or any company to spend more money doing something, especially when we’re going through this pandemic, I don’t see that changing anytime soon, but sure, they’re right. There are ways that they could take this thing and continue to break it down into smaller particles that…and then maybe find a way where it doesn’t have to blow into Vermont. You know, I think we’d all agree that’s probably a good idea if they could figure that out. But right now, I think we’re gonna be living with those acceptable levels. And, again, long term effects usually are found out down the road.

Interviewer: Well, Paul, it sounds like there might be some middle ground here. Is this an opportunity then to maybe save money and to make both parties happier by not litigating, but maybe mediating?

Paul: Maybe. You know, I think you’re never gonna quite…there’s gonna be extremes here, right. There’s gonna be the both camps, and they’re both gonna be on the really far sides of what is acceptable. And there’s one camp that’s saying, “None,” and one camp is saying, “We’re already breaking it down too much.” I think it will be ultimately mediated. In some regard, I think the litigation would fail immediately. But it’s gonna be more of a public relations mediation. I don’t think that these companies and the states are gonna do a whole lot right now because they think what they’re doing is safe, and I hope they’re right.

Interviewer: It seems to be the age-old question, Paul, of cost versus public health.

Paul: Mm-hmm. Always.

Interviewer: Well, we always enjoy getting your expertise, Paul. Paul Harding from Martin, Harding & Mazzotti. Remember they can give you great advice, too. Just give them a call and check them out online at 1800law1010.com.

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